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Wisconsin: Hand Count of Ballots is Public Records Law

Wisconsin’s Public Records Law grants the right to visually inspect and hand count ballots. As an important aside Florida’s Public Records Law, for example, does so as well and before an election is certified and before the expiration of the period for a recount (see NASS survey link below).

In Wisconsin the ballots are accessible under the Public Records Law only after the period for a recount. This exception, however, may only be a “position” (see quote below) not based on law and could be challenged. In any case, in the current recount it could be made abundantly clear that the Public Records Law is being asserted by Dr. Stein and that the hand count will take place regardless, during or after the recount, and therefore in the interest of conservation of effort should take place during the recount.

Wisconsin’s Public Records Law stipulates in 19.35(1)(a) “Except as otherwise provided by law, any requester has a right to inspect any record.”

“Yes Wisconsin has treated ballots as an open record for several years. The matter was litigated under our public records law and the courts found in favor of making ballots available for public inspection. Our position is that once the period for a recount or election contest has past the ballots are subject to public inspection.

We advise the custodian, either the municipal or county clerk, that someone must be present when the ballots are inspected. The custodian must make a record in the chain of custody and the custodian must take steps to protect against any possibility of tying a voter to a ballot…”

In the 2015 PowerPoint presentation by Anne B. Bensky, Assistant Attorney General, at the Wisconsin Attorney General Brad D. Schimel Open Government Summit, An Overview of Wisconsin’s Public Records Law, slides 26 and 27 discusses the 2012 HAND COUNT audit of electronically tabulated ballots in the various counties of Wisconsin and the costs involved.

Note:

A recount conducted without examining the ballots and counted by the same or similar machines that originally counted the ballots will not increase transparency and therefore confidence in the vote count. Please note the first comment below, as it expands on the rationale for Dr. Stein making a Public Records Law request to hand count the ballots before the recount in Wisconsin proceeds much further.

In reply to the question received via email: “I’m not sure how useful that is [requesting access to the ballots via Wisconsin’s Public Records Law], given that it clearly states, “Our position is that once the period for a recount or election contest has past the ballots are subject to public inspection” I responded: …First notice that the quote from the Wisconsin Secretary of State’s office did not state that “the courts found in favor of making ballots available for public inspection once the period for a recount…has past.” The quote indicates that the office of the Secretary of State has decided on its own (“our position”) to make this condition. As such it is probably not part of the case law or statutes of Wisconsin and therefore this restriction may be eminently challengeable in court. The second point, when making the Public Records Law request it can be pointed out to the courts that it is not rational to make the ballots accessible for inspection to the general public when it makes no difference and not to the candidate when such an examination could make a difference.The third point is if an inspection of the ballots, under the Public… Read more »